Citation Nr: 0432261
Decision Date: 12/06/04 Archive Date: 12/15/04
DOCKET NO. 04-03 616 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Whether the decision to sever service connection for post-
traumatic stress disorder (PTSD) was proper.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Commission
WITNESSES AT HEARING ON APPEAL
Appellant and his wife and daughter
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Counsel
INTRODUCTION
The veteran served in the U.S. Merchant Marine from May 18,
1943, to October 28, 1943; from November 1, 1943, to November
4, 1944; and from November 28, 1944, to January 5, 1945. He
also has additional service with the U.S. Coast Guard from
August 1945 to January 1946.
This appeal comes before the Board of Veterans' Appeals
(Board) from a December 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) that
severed service connection for PTSD. The veteran, his wife,
and his daughter testified before the undersigned veterans
law judge, via videoconference from the Jackson RO, in
November 2004.
FINDINGS OF FACT
1. Service connection for PTSD was granted in a June 2001
rating decision.
2. By a rating action dated in December 2002, the RO severed
service connection for PTSD, effective from March 1, 2003.
3. The factual basis for the grant of service connection for
PTSD in the June 2001 rating decision was tenable and did not
contain clear and unmistakable error.
CONCLUSION OF LAW
The June 2001 decision granting service connection for PTSD
was not clearly and unmistakably erroneous, and restoration
of service connection is warranted. 38 U.S.C.A. §§ 1110,
1154(b) (West 2002); 38 C.F.R. §§ 3.7(x)(15), 3.105, 3.303,
3.304 (d), (f) (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§ 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2004). This law eliminated the concept of a well-grounded
claim, redefined the obligations of VA with respect to the
duty to assist, and imposed on VA certain notification
requirements. Without deciding whether the notice and
development requirements of VCAA have been satisfied in the
present case, it is the Board's conclusion that the new law
does not preclude the Board from adjudicating the veteran's
claim. This is so because the Board is taking action
favorable to the veteran by restoring service connection for
PTSD and thus represents a full grant of the issue on appeal.
A decision therefore poses no risk of prejudice to the
veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384
(1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).
II. Factual background
The veteran served in the U.S. Merchant Marine from May 18,
1943, to October 28, 1943 (on board the U.S. Army Transport
[redacted] and the [redacted]); from November 1, 1943, to November
4, 1944 (on board the [redacted]); and from November 28, 1944, to
January 5, 1945 (on board the SS [redacted]). He
received the Merchant Marine Emblem, the Atlantic War Zone
Bar, the Pacific War Zone Bar, and the Merchant Marine Combat
Bar (with stars). He also has additional service with the
U.S. Coast Guard from August 1945 to January 1946.
Certificates from the War Shipping Administration indicate
that the Merchant Marine Combat Bar confirms active service
with the U.S. Merchant Marine on a ship that was engaged in
direct enemy action; and that the Pacific and Atlantic War
Zone Bars confirm active service in the U.S. Merchant Marine
in those war areas. Additionally, the Merchant Marine Combat
Bar is issued to seamen who serve in a ship that was directly
attacked or damaged by an instrumentality of war during that
service. 50 U.S.C. § 753(a) & (b) (repealed July 24, 1956).
A star is attached to the Combat Bar to seamen who are forced
to abandon ship when so attacked or damaged. Id.
The Board denied service connection for PTSD in January 1997.
The Board determined that there was inadequate medical
evidence establishing that the veteran had been diagnosed as
having PTSD. In September 2000, the veteran filed a request
to reopen his claim of service connection for PTSD
On VA treatment in October 2000, the examiner noted that the
veteran had been one of ten crewmembers on a small ship that
was hauling mostly aircraft parts and supplies to an Army
base in New Guinea and dead military personnel back for
burial. The veteran reported that the boat he served aboard
was frequently fired upon, and that he had been issued
hearing protection because of guns being fired from his ship.
He also had significant PTSD symptoms relating to another
crewmember that was looting the bodies of dead soldiers. He
reported in detail the suicide of a soldier on New Guinea, as
well as witnessing brutal treatment by the Japanese on their
New Guinea captives and seeing severed heads. He did not
have any impaired recall of any aspect of his experience
(except for a period of unconsciousness after being hit in
the head). He was diagnosed, in pertinent part, with PTSD
and depression. It was noted that he worried excessively and
that he felt guilt about a crewmember's behavior in opening
coffins and taking items from dead soldiers. At the time, he
had no impaired recall of any aspect of his experiences.
On VA examination in November 2000, the veteran provided a
history of being in combat situations, transporting dead
soldiers, and witnessing the looting of dead soldiers. He
also discussed seeing mutilated bodies while stranded in New
Guinea and having trouble finding food and shelter. Over the
years, he said he developed recurrent intrusive thoughts of
wartime experiences, chronic sleep problems, and depression.
The examiner noted past diagnoses of dysthymia and anxiety
disorder; however, the veteran's symptoms had worsened since
then, increasing in prominence and in the presentation of
avoidance phenomena. The diagnoses were PTSD and dysthymic
disorder. The examiner described the veteran as having
moderate stressors based on exposure to war trauma from 1943
to 1945. The examiner stated that the veteran satisfied the
criteria for PTSD under DSM IV.
According to a letter received in May 2001, the veteran
reported serving aboard an [redacted] ship off the coast of New
Guinea in 1944-1945. He stated that his ship "hauled all
the dead soldiers" and that his ship came under enemy fire
several times.
In June 2001, the RO reopened the earlier final decision on
the matter, and awarded service connection for PTSD. The RO
found that evidence showing a diagnosis of PTSD had been
clearly established. In addition to the numerous stressors
the veteran reported when he was stranded in New Guinea, the
RO observed that the veteran had been issued the Combat Bar
with Stars. The RO noted that the Combat Bar was issued to
seamen who served aboard a ship that was directly attacked or
damaged by an instrumentality of war, and that the star was
attached when the seamen were forced to abandon the ship as a
result of that attack.
In August 2001, the U.S. Armed Services Center for Unit
Records Research (USASCURR) reported that it had been unable
to verify the veteran's alleged stressor that he service
personnel aboard the S.S. [redacted] would not help
him enough to find a place to sleep or to be fed. The
USASCURR cautioned that an incident such as this "is not
normally documented in armed guard reports," and that it had
been unable to verify the veteran's claimed stressors.
In June 2002, the RO proposed to sever service connection for
PTSD. The RO held that the awarding of service connection
for PTSD in June 2001 was clearly and unmistakably erroneous
because the grant had been made without verifying the
veteran's alleged stressors. The RO stated that the grant of
service connection had been based solely on the veteran's
receipt of the Merchant Marine Combat Bar. In this regard,
the RO indicated that the veteran's purported stressors were
not combat related, and that he had previously given
statements indicating that his ship had never been fired upon
by the enemy. Moreover, the RO stated that the Merchant
Marine Combat Bar was not listed as acceptable proof or
verification of combat participation for VA purposes. The RO
indicated that the report received from USASCURR served to
refute his alleged non-combat stressors, and that it had been
error on its part to grant service connection for PTSD prior
to receiving the report. The veteran was advised that he had
60 days to submit evidence or argument that supported his
claim for service connection.
In July and October 2002, the veteran had diagnoses of
depressive disorder. October and November 2002 VA outpatient
medical records also show treatment for PTSD. It was noted
that the veteran had dementia, was a very poor historian, and
was unable to provide any detailed information about
experiences that contributed to PTSD. He reported being
troubled by frequent nightmares and intrusive thoughts of
transporting dead bodies on ships.
The RO issued a decision in December 2002 that severed
service connection for PTSD. The effective date of the
severance was March 1, 2003. The veteran appealed this
decision.
The veteran, his wife, and his daughter testified before the
Board, via videoconference from the Jackson RO, in November
2004. He stated that he was stranded in New Guinea by the
vessel that he had been on board and was unable to obtain
passage back home on another vessel about 24 days later.
While he was stranded in New Guinea, he witnessed several
traumatic events. Also, while he was returning to the United
States, he saw the bodies of numerous soldiers. His wife
said that she had witnessed him having flashbacks and
nightmares. He also stated that he had been on board a
vessel that came under enemy fire.
II. Analysis
Service in the Merchant Marines is deemed active service for
VA purposes only if performed between December 7, 1941, and
August 15, 1945. 38 C.F.R. § 3.7(x)(15) (2004). In
addition, the service of merchant seamen who served on
blockships in support of Operation Mulberry is deemed active
service for VA purposes. 38 C.F.R. § 3.7(x)(14) (2004).
In this case, the record includes various forms and
certificates verifying that the veteran had active service,
for VA purposes, in the U.S. Merchant Marine from May 18,
1943, to October 28, 1943 (on board the U.S. Army Transport
[redacted] and the [redacted]); from November 1, 1943, to November
4, 1944 (on board the [redacted]); and from November 28, 1944, to
January 5, 1945 (on board the SS [redacted]). This
is the service that the Board will accept as active service
for VA purposes and for the purposes of this appeal.
Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303 (2004).
For the showing of chronic disease in service, there must be
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, evidence of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b) (2004). Service connection may also be granted for
a disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2004).
"A determination of service connection requires a finding of
the existence of a current disability and a determination of
a relationship between the disability and an injury or
disease incurred in service." Watson v. Brown, 309, 314
(1993). To establish service connection for a claimed
disorder, there must be (1) medical evidence of current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The
determination is based on analysis of all the evidence and
evaluation of its credibility and probative value. Baldwin
v. West, 13 Vet. App. 1, 8 (1999).
In order for service connection to be awarded for PTSD, three
elements must be present: (1) a current medical diagnosis of
PTSD; (2) medical evidence of a causal nexus between current
symptomatology and a claimed in-service stressor; and (3)
credible supporting evidence that the claimed in-service
stressor actually occurred. 38 C.F.R. 3.304(f); Cohen v.
Brown, 10 Vet. App 128 (1997). With respect to the second
element, if the evidence shows that the veteran did not serve
in combat during service, or if there is a determination that
the veteran engaged in combat but the claimed stressor is not
related to such combat, there must be independent evidence to
corroborate the veteran's statement as to the occurrence of
the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289
(1994). The veteran's testimony, by itself, cannot, as a
matter of law, establish the occurrence of a non-combat
stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
this combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996).
The regulation was changed to conform to Cohen v. Brown, 10
Vet. App. 128 (1997).
Once service connection has been granted, it can be severed
only upon the Secretary's showing that the rating decision
granting service connection was clearly and unmistakably
erroneous and only after certain procedural safeguards have
been met. 38 C.F.R. § 3.105(d) (2004); see also Daniels v.
Gober, 10 Vet. App. 474 (1997); Graves v. Brown, 6 Vet. App.
166, 170-71 (1994). Specifically, when severance of service
connection is warranted, a rating proposing severance will be
prepared setting forth all material facts and reasons. The
claimant will be notified at his or her latest address of
record of the contemplated action and furnished detailed
reasons therefore and will be given 60 days for the
presentation of additional evidence to show that service
connection should be maintained. 38 C.F.R. § 3.105(d); see
also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991).
The Board will not consider whether there were any procedural
deficiencies in the RO's severance of service connection, as
neither the veteran nor his representative have asserted such
deficiencies, and current review by the Board shows that the
RO complied with the provisions of 38 C.F.R. § 3.105(d).
The United States Court of Appeals for Veterans Claims
(Court) has held that 38 C.F.R. § 3.105(d) places the same
burden of proof on VA when it seeks to sever service
connection as 38 C.F.R. § 3.105(a) places upon a claimant
seeking to have an unfavorable previous determination
overturned. See Baughman v. Derwinski.
Clear and unmistakable error is a very specific and rare kind
of error. It is the kind of error, of fact or of law, that
when called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993).
To determine whether clear and unmistakable error is present
under 38 C.F.R. § 3.105(a) in a prior determination, either
the correct facts, as they were known at the time, were not
before the adjudicator (i.e., more than a simple disagreement
as to how the facts were weighed or evaluated), or the
statutory or regulatory provisions extant at the time were
incorrectly applied; the error must be undebatable and of the
sort which, had it not been made, would have manifestly
changed the outcome at the time it was made; and a
determination that there was clear and unmistakable error
must be based on the record and law that existed at the time
of the prior adjudication in question. Damrel v. Brown, 6
Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App.
310, 313-14 (1992).
However, although the same standards apply in a determination
of clear and unmistakable error in a final decision under
section 3.105(a) and a determination as to whether a decision
granting service connection was the product of clear and
unmistakable error for the purpose of severing service
connection under section 3.105(d), section 3.105(d) does not
limit the reviewable evidence to that which was before the RO
in making its initial service connection award. See Daniels
v. Gober. Because 38 C.F.R. § 3.105(d) specifically states
that "[a] change in diagnosis may be accepted as a basis for
severance," the regulation clearly contemplates the
consideration of evidence acquired after the original
granting of service connection. Thus, "[i]f the Court were to
conclude that...a service-connection award can be terminated
pursuant to § 3.105(d) only on the basis of the law and
record as it existed at the time of the award thereof, VA
would be placed in the impossible situation of being forever
bound to a prior determination regardless of changes in the
law or later developments in the factual record." Id.
The severance of service connection was premised on the RO's
determination that there was no credible supporting evidence
of the veteran's claimed in-service stressors. However,
after reviewing the record in this case, the Board finds that
the requirements for severing service connection for PTSD
were not met at the time of the December 2002 rating
decision, and that restoration of service connection for that
disability is warranted. 38 C.F.R. § 3.105(d). As indicated
above, the Court has indicated that 38 C.F.R. § 3.105(d)
places the same burden on VA when it seeks to sever service
connection as 38 C.F.R. § 3.105(a) places on a claimant
seeking to have an unfavorable decision overturned.
The veteran has generally referred to various stressors that
he experienced between November 4, 1944 (when he was forced
to disembark from the [redacted] in New Guinea), and November 28,
1944 (when he secured passage on board the SS [redacted] on
its return to the United States). Stressors from this period
have included witnessing the suicide of a fellow soldier,
observing the brutal treatment of prisoners, and seeing a
severed head. In part, the veteran has maintained that the
roughly 24 days in November 1944, during which he experienced
these stressors, are in effect active service. However, the
Board need not address this argument; the Board finds that
there are sufficiently verified stressors that were present
during the veteran's actually recognized active service, as
listed above.
Prior to being "stranded" in New Guinea in early November
1944, the veteran had been in the Merchant Marine on a small
ship that ferried both aircraft parts and dead soldiers. The
veteran has described looting of dead soldiers by a fellow
crewmember as well as instances of coming under enemy fire.
While there are some inconsistencies and differences in the
veteran's various accounts of his stressors, the Board does
not find his account inherently non-credible. On the
contrary, his account appears entirely plausible, given the
circumstances and nature of the veteran's service.
The veteran also has been awarded the Merchant Marine Combat
Bar with stars, which demonstrates service on board a vessel
that engaged in direct enemy action.
Under a prior version of the regulation governing service
connection for PTSD, if the claimed stressor was related to
combat, service department evidence that the veteran engaged
in combat or that the veteran was awarded the Purple Heart,
Combat Infantryman Badge, or similar combat citation would be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor. 38
U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (1996).
However, the RO rigidly and incorrectly applied a superseded
regulation (the 1996 version of 38 C.F.R. § 3.304(f)), rather
than the currently applicable version. See 38 C.F.R. § 3.304
(2004). The currently applicable version does not mention
the Purple Heart or the Combat Infantryman Badge as examples
of conclusive proof of participation in combat. Indeed, even
under the prior version of the regulation, "similar combat
citation" was accepted as conclusive evidence of the claimed
in-service stressor; additionally, other "service department
evidence" was also acceptable. In any event, under either
version, the veteran's Merchant Marine Combat Bar with stars
demonstrates that he served on board a vessel that engaged in
direct conflict with the enemy.
The Board further notes that the Court recently held that
corroboration of every detail of a veteran's claimed in-
service stressor(s) is not required, i.e., physical proximity
and/or personal participation, if there is sufficient
evidence to imply the veteran's personal exposure to a
stressful event which an examiner deems sufficient to support
a PTSD diagnosis. See Pentecost v. Principi, 16 Vet. App.
124 (2002); see also Suozzi v. Brown, 10 Vet. App. 307
(1997). We recognize that the Pentecost precedent was issued
by the Court at a time contemporaneous to the RO's severance
action in the present case, and may not have been considered,
but the Board is obligated to follow judicial caselaw as in
effect at the time of our decision.
Here, it is debatable whether or not the veteran participated
and whether he has PTSD as a result of combat stressors. A
reasonable mind could have answered these questions in the
veteran's favor, and granted service. As such, the December
2002 rating decision granting service connection for PTSD was
not clearly and unmistakably erroneous, and restoration of
service connection for PTSD is therefore warranted.
ORDER
Restoration of service connection for PTSD is granted
effective March 1, 2003, the effective date of the severance.
____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2